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The tribunal interpreted the first paragraph to mean that Turkmenistan consented to submit disputes with UK investors to international arbitration generally, under three conditions, namely: That the first two conditions were satisfied in this case was uncontested.
Discussion of the third condition, namely whether the claims concerned a treaty or a purely contractual breach, was deferred to the decision on the merits ibid.
Following the establishment of consent to arbitration generally, the tribunal moved to the question of whether the claimant, through application of the MFN clause contained in the UK-Turkmenistan BIT, may rely on consent to ICSID arbitration contained in investment treaties concluded between Turkmenistan and third States.
After discarding other arguments of the Respondent in this respect, the majority concluded that, as a consequence, the MFN clause should be applied to investor-State dispute settlement clauses para.
The next step of the tribunal was to apply these principles to the case at hand. The claimant had invoked the benefit of more favourable dispute settlement provisions in multiple treaties, but since the focus was placed on the Switzerland-Turkmenistan BIT, the tribunal essentially focused on this treaty alone.
The tribunal examined two separate questions: In support of this argument, the respondent cited the decision of the tribunal in Maffezini v.
Spain , the first decision to accept the application of MFN clauses to dispute settlement provisions. However, the majority accepted that the choice given to investors to choose between both types of arbitration is in fact more favourable than BITs which restrict the submission of a claim to one system of arbitration paras.
Boisson de Chazournes considered first that construing Article 8 of the UK-Turkmenistan BIT as containing two separate provisions—the first paragraph containing the consent to arbitration and the second paragraph the arbitration system which may be used as a consequence—disregarded the need to interpret that article as a whole.
On the first point, Boisson de Chazournes maintained that Article 8 1 of the UK-Turkmenistan BIT contains consent in principle to arbitration, after a waiting period of four months, but that such consent must be read in light of the specific conditions governing that consent in Article 8 2.
In other words, Article 8 1 cannot be read in isolation from Article 8 2. Drawing the conclusion that consent has been given in Article 8 1 was according to Boisson de Chazournes patently wrong, since it confounded the power to initiate arbitration with consent to arbitration para.
The dissenting arbitrator then analysed the ordinary meaning of the MFN clause in the UK-Turkmenistan BIT Article 3 2 - 3 , which, as mentioned, explicitly applies to dispute settlement provisions.
This article however should be read in light of the other provisions of the BIT, and not in isolation, which the majority failed to do paras. Such consent clearly is lacking in this case, according to Professor Boisson de Chazournes paras.
Spain , in which tribunals unambiguously stated that the MFN clause may not alter an explicit choice of forum.
Indeed, those decisions were mainly concerned with pre-arbitration requirements, such as waiting periods or exhaustion of domestic remedies requirements.
A UNCTAD study reveals indeed that the invocation of the MFN clause to replace the arbitral forum or rules for the settlement of investor-State disputes has never been accepted by a tribunal.
To read the first and second paragraphs of the clause as two unconnected parts of an investor-State dispute settlement clause is contrary indeed to the logic behind the Article 8 of the UK-Turkmenistan BIT.
It seems difficult to dissociate the first paragraph from the second, since doing so would simply render the second paragraph irrelevant. In fact the first paragraph of Article 8 contains only pre-arbitration requirement—a waiting period of four months—and reading into that paragraph a general consent to arbitrate seems to be overly inventive.
The argument developed in the dissenting opinion echoes the decision of the Tribunal in Diamler v. The Tribunal there noted:.
The Tribunal is therefore presently without jurisdiction to rule on any MFN-based claims unless the MFN clauses themselves supply the Tribunal with the necessary jurisdiction.
Boisson de Chazournes takes up this argument in her dissent, arguing that since Turkmenistan has not provided consent to ICSID arbitration in the basic treaty, the claimant is not in a position to invoke the MFN clause.
Nationality of the parties. Respondent State s Turkmenistan. Home State s of investor United Kingdom. Summary of matters at issue. Details of investment Rights under a contract signed between State Concern Turkmenautoyollari and Garanti Koza LLP for the design and construction of 28 highway bridges and overpasses on the Mary-Turkmenabad highway in Turkmenistan.
Summary of the dispute Claims arising out of disagreements between Garanti Koza and Turkmenistan over the performance of certain construction contract that led to the suspension of works and the subsequent Government's termination of the contract based on the investor's alleged failure to complete the work on time and the failure to resume works for a prolonged time of time.
Economic sector and subsector. Economic subsector 42 - Civil engineering. Arbitral rules and administering institution.